The U.s. Has Sullied Its Honor

July 29, 1986|By Richard B. Bilder. Richard B. Bilder is Burrus-Bascom professor of law at the University of Wisconsin-Madison and author of ``Managing the Risks of International Agreement.``

The World Court decision in the Nicaragua case is the most significant international court judgment ever rendered. In its 12-3 ruling, the court held that the United States had violated international law, but the U.S. has chosen to ignore the judgment.

The legal principles affirmed by the court--including its condemnation of the aggressive use of force, coercive intervention and violations of the humanitarian rules of armed conflict--clearly apply not only to the U.S. but to the Soviet Union and every other country.

The decision is legally binding on the United States, which is a party to the United Nations Charter and the Statute of the International Court, both binding treaties of the U.S. Although the Court of International Justice

(like the U.S. Supreme Court) can deploy no police officers, its judgments are intended to be enforceable. Article 94 (2) of the UN Charter provides:

``If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council, which may, if it deems necessary, make

recommendations or decide upon measures to be taken to give effect to the judgment.``

It is true that the U.S. could use its veto to prevent the Security Council from adopting an enforcement decision against it. But the court`s decision would continue to be legally binding, and the U.S. would still be in violation of its obligations under the Charter and subject to international criticism or condemnation.

The administration argues that the U.S. never consented to the court`s exercising jurisdiction over the dispute. However, in a 1984 decision, the court considered these U.S. arguments in great detail and concluded that by a declaration made earlier to the court and an existing treaty with Nicaragua, the U.S. had agreed in advance to the court`s jurisdiction.

The administration also suggests that the court was biased against this country. Yet the court is made up of highly reputable judges, most of them from Western-oriented nations or countries friendly to the U.S. (No Soviet judge participated in this decision.) It is simply not believable that almost all of these judges were biased. Moreover, this is much the same court that only six years ago ruled almost unanimously in favor of the U.S. in the Iranian hostages case.

By refusing to appear before the court to defend the U.S. case on its merits, the administration deprived us of the opportunity to effectively present our evidence or challenge Nicaragua`s. The refusal also raised questions as to the credibility of our arguments, and made it much more difficult for the court to find in favor of the U.S.

The U.S. has a solemn legal obligation to respect the court`s judgment, and our failure to do so will breach our treaty commitments under the UN Charter. So the administration`s stance raises grave issues in terms of national honor and reputation, U.S. commitment to treaties and the rule of law, and the future of international law and adjudication.

Long after the Reagan administration passes into history and its opposition to the Sandinista regime is forgotten, the United States will have to continue doing business with other countries. Unless we are willing to respect international law and keep our treaty promises, we can hardly expect the Soviet Union or any other country to do so. And without international law, we have little hope of achieving a world in which we and our children can live decently and in peace.

In the last paragraphs of its opinion, the World Court calls upon the U.S. and Nicaragua to negotiate a peaceful settlement of their differences, through the Contadora process or otherwise. Indeed, through such

negotiations there is a good chance we could accomplish our legitimate objectives--including ensuring that Nicaragua does not assist the El Salvador rebels, threaten its neighbors or become a Soviet military base. Perhaps as part of such a settlement, we could insist upon Nicaragua`s withdrawing its case from the court, as we agreed to withdraw our own hostages case in our Algiers Accords with Iran.

The Statue of Liberty holds the torch of freedom in her right hand. Her left hand holds the tablet of the law. Contempt for law, domestically or internationally, is inconsistent with our history and traditions. The administration may choose to ignore the World Court`s Nicaragua decision--but only at a serious cost to our country`s honor and interests.